### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18

- 3696
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

B RENNEN M. S MITH , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Central District of Illinois. No. 4: 17

- cr

- 40039

- 001

— Sara Darrow , Chief Judg e

.

____________________
A RGUED N OVEMBER 8, 2019

— D ECIDED N OVEMBER 25, 2020

____________________

Before S YKES , Chief Judge , and R IPPLE and R OVNER , Circuit Judges

. S YKES , Chief Judge

. Brenn e n Smith stole a pickup truck in Iowa, dr o v e it across the Mississippi River into Illinois , then crashed into a median and fle d t he scene , leaving a stolen handgun inside

. Because he has a felon y record and the
sto len truck crossed state lines, Smith faced federal charges of unlawful ly possessi ng a firearm as a felon and possession of stolen goods. He pleaded guilty to both counts.2 No. 18

- 3696

The presentence report recommended a n enhanced offense level under § 2K2.1(a) (2) of the Sentencing Guidelines based on two of Smith’s prior convictions: a 2009 Iowa conviction for delivery of co caine and a 2008 Iowa conviction for aggravated assault. Smith conceded that the former qualified as a “ contr olled substance offense ” under § 2K2.1(a)(2). He objected , however, to c ounting the aggravated

- assault conviction as a “crime of violence” under the G uideline s . T he judge overruled the objection and imposed a sente nce of 115 months , the top of the advisory range

. Smith argu es that t h e 2008 aggravated

- a ssault conviction i s not a crime of violence under a proper application of the categorical approach to classifying convictions for sentencing purposes

. A s relevant here, a “ crime of violence ” is a n offense that has “as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a). Smith’s 2008 conviction rests on section 708.2(3) of the Iowa Code . Under that statute , “[ a ] person who commi ts an assault , as defined in section 708.1, and uses or displays a dangerous weapon in connection with the assault ” is guilty of th e crime of aggravated assault

. Smith observes, correctly enough , that some variant s of the simple assault offense as de fined in section 708.1 do not require the use or threat of physical force

. W e recently held, however, that section 708.1 is divisible

— that is, the separate subsections in the statute define separate crime s , each with different elements

. Uni ted States v. Carter , 961 F.3d 953 , 957 (7th Cir. 2020)

. That requires us to look to the charging document or similar court record s to determine which crime , with what elements, Smith was convicted of. Smith’s courtNo. 18

- 3696 3

records show that he was convict ed under a subsection of the assault statute that requires a threat of physical force

— indeed, the same part of the Iowa statute that we addressed in Carter

. Id

. at 957

– 58. It follows from Carter that t he judge properly relied on Smith’s 2008 aggravated

- assault conviction to e levate his base offense level under § 2K2.1(a)(2)

. We affirm.
I . Background
In November 2016 Smith briefly work ed as a sales man at Lindquist Ford in Bettendorf, Iowa

. When he started, he was given a master key that open ed a lockbox that held the keys to every vehicle on the lot

. Smith quit after only a week on the job and did n o t turn in his master key. Instead, about two months later, he returned to the dealership and stole a 2016 Ford F250 truck. He placed stolen license plates on the truck and drove it across state lines into Illinois . A few days later he crashed the truck into a median in Rock Island County , Illinois . He fled the scene, leaving a stolen pistol in the truck. A week later Smith was arrested

. He admitted that he stole the truck, wrecked it, and left the firearm in side. A grand jury in the Central District of Illinois returned a
two

- count indictment charging Smith with unlawfully possessi ng a firearm as a felon, 18 U.S.C. § 922(g)(1) , and possessi ng stolen goods that traveled ac ross state lines , id. § 2315. He pleaded guilty to both counts without a plea agreement. For the firearm count, t he p resentence r eport (“PSR”) recommended a bas e offense level of 24 under § 2K2.1(a)(2), which applies when the defendant has “at least two felony convictions of either a crime o f violence or a controlled4 No. 18

- 3696

substance offense.” The PSR listed three possible qualifying predicate s : a 2009 Iowa conviction for delivery of cocaine , a 2008 Iowa conviction for aggravated assault, and a 2013 Iowa conviction for domestic

- abuse assault

. The PSR also recommended a two

- level increase in the offense level because the firearm was stolen , raising the o ffense level t o 26. See U.S.S.G. § 2K2.1 (b)(4)

. At sentencing t he parties agreed that the Iowa cocaine offen se is a qualifying controlled

- substances crime for purposes of § 2K2.1(a)(2) . The debate centered on the two assault convictions

. Smith argued that neither the aggravated assault nor the domestic

- abuse assault could be counted as predicate crimes of violence ; t he government argued that both crimes qualify

. The judge conclude d that the aggravated

- assault offense is a crime of violence , which made it unnecessar y for her to address the domestic

- abuse assault ; t h e cocaine offense and the aggravated assault provided the two convictions needed to support the recommended base offense level of 24. The judge added two level s because the firearm was stolen, then awarded a three

- level reduction for accept ance of responsibility, resulting in a final offense level of 23 . With Smith’s criminal

- history category of VI , the advisory Guidelines sentencing range was 92 to 115 months. The judge imposed concurrent sentence s of 115 month s on each count

. II. Discussion
Smith reprises his argument that neither of his Iowa assault convictions is a crime of violence for purposes of the elevated base offense level under § 2K2.1(a)(2)

. A lthough the Guidelines are purely advisory, a c orrect ly calculat ed Sentencing Guidelines range is the required first step in theNo. 18

- 3696 5

sentencing process, so a mistake in the calculat ion is a procedural error

. United States v. Hurlburt , 835 F.3d 715, 723 (7th Cir. 2016). Classifying prior conviction s for sentencing purposes is a legal determination ; our review is therefore de

novo

. United States v. Edwards , 836 F.3d 831, 834 (7th Cir. 2016)

. A s relevant here, a crime of violence is “any offense u nder federal or state law, punishable by imprisonment for a term exceeding one year, that

... has as an element the use, attempted use, or threatened use of physical force against the person of another

. ” § 4B1.2(a) (1)

. W hether a conviction qualifies under this definition depends entirely on the statutory elements of the crime. Edwards , 836 F.3d at 83 4

– 3 5

. The inquiry is therefore legal and categorical: If the statute underlying the conviction defines the offense more broadly than the Guideli nes definition, then the prior conviction cannot be counted ; if the statutory elements of the offense match or are narrower than the Guidelines definition, then the conviction qualifies as a crime of violence

. Id

. Many criminal statutes contain multiple pa rts, which adds a layer of complexity to the categorical analysis . A multipart statute may create more than one crime, each with its own set of elements, or it may list several different factual means of committing a single element of the offense

. Mathis

v . United States , 136 S. Ct. 2243, 2249 (2016). If a multipart statute defines multiple crimes

— i.e., if the subparts are legal elements rather than alternative factual means of committing an element of the crime

— then the statute is considered

“ divisible ” an d a modifie d form of the categorical approach applies . The modified approach requires an examination of the charging document or other court records “ to determine6 No. 18

- 3696

what crime , with what elements, [the] defendant was convicted of

. ” Id

. If, on the other hand, the various alternatives in a multipart statute are simply alternative factual means of committing a single element

— so that a jury need not unanimously agree on how the def endant committed th at element in order to convict

— then the statute is not divisible. Id

. An indivisible statute that sweep s more broadly than the Guidelines definition is not a categorical match , and a conviction under it does not qualify as a crime of vio lence. Edwards , 836 F.3d at 834

– 35.
O ur recent opinion in Carter applied these principles to the Iowa assault statut es at issue here. Like Smith, the defendant in Carter pleaded guilty to unlawfully possessing a firearm as a felon in violation of § 922(g)(1) , and his base offense level under § 2K2.1(a)(2) hinged on whether his conviction for aggravated assault under section 708.2(3) of the Iowa Code qualified as a crime o f violence

. Carter , 961 F.3d at 95 6

– 59

. S ection 708.2(3) provides : “ A person who commits an assault, as defined in section 708.1, and uses or displays a dangerous weapon in connection with the assault, is guilty of an aggravated misdemeanor.” U nder Iowa la w
an aggravated misdemeanor is punishable by up to two years in prison , s ee I OWA C ODE § 903.1(2) , so t he pivotal question in Carter was whether the Iowa aggravated

- assault offense as defined in section 708.2(3) “has as an element the
use, attempted use, or threatened use of physical force , ” § 4B1.2(a)(1) ; Carter , 961 F.3d at 957

. The s ection 708.2(3) offense has two elements: (1) the defendant us e d or display ed a dangerous weapon ; (2) in connection with an assault as defined in section 708 .1. AsNo. 18

- 3696 7

relevant here, s ection 708.1 , Iowa’s version of the crime of simple assault, provides in part :
2. A person commits an assault when, withoutjustification, the person does any of the following:

a . Any act which is intended to cause pain or injury to , or which is intended to result inphysical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
b . Any act which is intended to place another in fear of immediate physical contact which will be pa inful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

c . Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.
I OWA C ODE § 708.1. 1

Because section 708.1 (2) contains multiple subparts, the first step in our analysis in Carter concerned the question of divisibility. Carter , 961 F.3d at 956

– 57. We looked to the Iowa Supreme Court for guidance, noting that the state high court reads the s eparate subsections of section 708.1 (2) to create distinct crimes. Id

. at 957 (citing State v. Fountain , 786 N.W.2d

1 The version of section 708.1 in effect in 2008 used a different numbering system for these three separate subdivisions. The text was the same , however

. For ease of reference , w e use the current numbering, as we did in Carter

. United States v. Carter , 961 F.3d 953, 957 (7th Cir. 2020).8 No. 18

- 3696

260, 265 (Iowa 2010)). Accordingly, we concluded that the statute is divisible and applied the modified categorical app roach

. Id

. The next s tep in the analysis required an examination of the court records from the defendant’s underlying case to determine which of the three basic assault crimes in section 708.1(2) formed the basis for his conviction for aggravated assault

. Some of the court rec ords were unilluminating, but the defendant had admitted in his plea agreement that he displayed a knife during an altercation with the victim. Id

. at 958. T he version of the assault crime defined in subsection ( 2 ) (c) of the statute covers “[i] ntentionally point[ing] any firearm toward another, or display [ ing ] in a threatening manner any dangerous weapon toward another .” W e therefore concluded that “[s]ection 708.1(2)(c)

... p rovided the basis for [the defendant’s] aggravated assault conviction.” Id

. The defendant insisted that mere ly display ing a dangerous weapon does not imply a threat of physical force, but we rejected that argument. Carter , 961 F.3d at 958

. We noted that the Supreme Court had recently clarified that “the threat of physical force ‘does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality .’” Id

. (quoting Stokeling v. United States , 139 S. Ct. 544 , 554 (2019)). Putt ing the se pieces together, we concluded that an “[a]ggravated assault under § 708.2(3) of the Iowa Code, with a predicate assault under § 708.1(2)(c), necessarily involves at least the threat to use physical force

. ” Id

. at 959. S o the defendant’s convictio n was properly counted as a crime of violence. Id

.No. 18

- 3696 9

That holding controls here. Like in Carter , some of the court records in Smith’s 2008 aggravated

- assault case are
un illuminating . For instance, the judgment s ays only that he was sentenced for the crime of “assault with a dangerous weapon” in violation of sections 708.1 and 708.2(3). But t he charging document holds the key , stat ing that Smith “did: assault [ t h e victim] by using or displaying a dangerous weapon, to

- wit: [a] metal bat.” Substitute “knife” for “metal bat” and this case is Carter

. Applying Carter ’s reasoning here, we conclude that s ubsection 708.1(2)(c) provide s th e basis for Smith’s aggravated

- assault conviction under section 708.2(3) , and the conviction was properly count ed as a crime of violence.
We have just a few additional observations in closing

. S ubs ection ( 2 ) (c) of section 708.1 is not only divisible from sub sections (2) ( a ) and (2) ( b ) , but i t’ s also internally divisible. Recall that it contains two parts, one c riminalizing the act of intentionally pointing a firearm and a second c riminalizing the act of displaying a dangerous weapon in a threatening

manner . The second internal sub part has different and additional elements than the first

. To convict under the first , a jury would need to unanimously agree that the defendant (1) intentionally pointed a firearm ( 2 ) at another person. In contrast, to convict under the second internal subpart , a jury would need to unanimously agree that the defendant (1) displayed a dangerous weapon ( 2 ) in a threatening

manner (3) toward another person

. The term “dangerous weapon” is defined broadly to include “any instrument or device designed primarily for u se in inflicting death orinjury” and “any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious bodily10 No. 18

- 3696

injury.” I OWA C ODE § 702.7. Th e second subpart plain ly contains different elements than the first and thus defines a distinct crime.
Carter did not expressly hold that sub section ( 2 ) (c) is internally divisible, but our analysis implicitly treated it as such

. As we’ve noted, the defendant there admitted in his plea agreement that he display ed a knife during an altercation with the victim, so his aggravated

- assault conviction necessarily involved the second internal subpart of section 708.1 (2)(c) , not the first

. The distinction does not matter here, but it may be important in a future case . U nder current circuit precedent, pointing a firearm , without more , is not a crime of violence. Portee v. United States , 941 F.3d 263, 268 (7th Cir. 2019)

. Portee is hard to rec oncile with the Supreme Court’s reasoning in Stokeling , which (to repeat ) held that a threat of physical force in this context does not require any particular degree of likelihood of injury or pain , “only potentiality

. ” Stokeling , 139 S. Ct. at 554. Portee does not mention Stokeling , and Carter does not mention Portee

. But resolving the apparent tension between Portee and Stokeling is a question for another day. Smith’s 2008 Iowa aggravated

- assault conviction is materially i dentical to the conviction at issue in Carter

. It follows that the conviction was properly classified as a crime of violence for purposes of the enhanced base offense level in § 2K2.1(a)(2). 2 There was no procedural error.
A FFIRMED

2 Because we conclude that the 2008 aggravated

- assault conviction is a qualifying crime of violence, we have no need to address Smith’s 2013 conviction for domestic

- abuse assault.